Guess the litigants ran out of gas in this ongoing legal battle. (Pure. Comedic. Genius). CBS has settled a copyright infringement lawsuit claiming it stole the look of a puppet hippo for NCIS and using it to make merchandise branded as “Bert the Farting Hippo”.
For the past 40 years, Folkmanis (yeah, don’t say the name of this company out loud around impressionable youngsters) has been the creator, manufacturer and distributor of fine stuffed animal puppets. In 2002, Folkmanis began distributing its stuffed hippopotamus that can be seen on the left below. In 2003, the puppet started appearing as a prop on the CBS hit show, NCIS, and was accompanied by a dubbed sound effect of a fart attributable to the big guy. The puppet was referenced as “Bert the Farting Hippo” and has appeared on more than a dozen episodes of the show.
In 2010, Folkmanis agreed to produce Bert for sale on CBS’s online store and later made key chains with a smaller version of Bert on them. In 2012, CBS cut out Folkmanis and had a company in China produce another hippo that was still branded as Bert. Folkmanis claimed that this new version of Bert is a copy-hippo of their copyrighted version of the animal.
In August 2014, Folkmanis sued CBS for copyright infringement and sought damages of $733,000 plus its attorneys’ fees. The case was being litigated until the parties reached a settlement last week. Details of the settlement were not released but the case was dismissed by Folkmanis. In order to establish copyright infringement, Folkmanis would have to show that the two works pictured above are substantially similar. Also, a hippo is a hippo and unless there is something unique to a design, the look of a hippo is not protectable under copyright. So it was probably best for both sides that a settlement was reached. No word on whether Bert will be making future guest appearances on the show. Maybe CBS should have stuck with another stuffed character like “Flatulent Fox”.